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EXHIBIT 10.1.24
EXECUTION COPY
WAIVER, dated as of April 25, 1997, (this "Waiver"), to the Amended and
Restated Credit Agreement dated as of January 25, 1996 (as amended pursuant to
the First Amendment thereto, dated as of April 23, 1996, the Second Amendment,
dated as of August 28, 1996, and the Third Amendment dated as of January 25,
1997, and as further amended, supplemented, waived or otherwise modified from
time to time, the "Credit Agreement"), among A.P.S., INC., a Delaware
corporation (the "Borrower"), the several banks and other financial
institutions from time to time parties thereto (collectively, the "Lenders";
individually a "Lender") and THE CHASE MANHATTAN BANK (formerly known as
Chemical Bank), a New York banking corporation, as agent for the Lenders (in
such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Agent are parties to the
Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders waive certain
provisions of the Credit Agreement in the manner provided for herein; and
WHEREAS, the Agent and the Lenders are willing to agree to the
requested waiver, but only upon the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises contained herein, the
parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are
defined in the Credit Agreement and used herein are so used as so defined.
2. Waiver of Event of Default under Subsection 8.1(c) of the Credit
Agreement. The Lenders hereby waive, until July 15, 1997, any Default or Event
of Default arising out of the failure of the Borrower to comply with the
requirements of subsection 8.1(c) of the Credit Agreement at the last day of
the fiscal quarter ending April 25, 1997, provided that the waiver provided in
this Section shall cease to be effective if the Consolidated Leverage Ratio of
Holding at the last day of such fiscal period is greater than 4.50 to 1.00.
3. Representations and Warranties. On and as of the date hereof and
after giving effect to this Waiver, the Borrower hereby confirms, reaffirms and
restates in all material respects the representations and warranties set forth
in Section 5 of the Credit Agreement mutatis mutandis, except to the extent
that such representations and warranties expressly relate to a specific earlier
date in which case the Borrower hereby confirms,
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reaffirms and restates in all material respects such representations and
warranties as of such earlier date, provided that the references to the Credit
Agreement in such representations and warranties shall be deemed to refer to
the Credit Agreement as amended prior to the date hereof.
4. Effectiveness. This Waiver shall become effective as of the date
hereof upon receipt by the Agent of counterparts of this Waiver duly executed
and delivered by the Borrower and the Required Lenders.
5. Continuing Effect; No Other Waivers. Except as expressly waived
hereby, all the terms and provisions of the Credit Agreement are and shall
remain in full force and effect. The waiver provided for herein is limited to
the specific subsection of the Credit Agreement specified herein and shall not
constitute a waiver of, or an indication of the Agent's or the Lenders'
willingness to waive, any other provisions of the Credit Agreement or the same
subsection for any other date or time period (whether or not such other
provisions or compliance with such subsection for another date or time period
are affected by the circumstances addressed in this Waiver).
6. Expenses. The Borrower agrees to pay and reimburse the Agent for
all its reasonable costs and out-of-pocket expenses incurred in connection with
preparation and delivery of this Waiver, including, without limitation, the
reasonable fees and disbursements of counsel to the Agent.
7. Counterparts. This Waiver may be executed by one or more of the
parties to this Waiver on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Waiver
signed by all the parties shall be delivered to the Borrower and the Agent.
8. GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
A.P.S., INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Vice President
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THE CHASE MANHATTAN BANK (formerly
known as Chemical Bank), as
Agent and as a Lender
By: /s/ XXXXX X. XXXX
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Title: Vice President
AMSOUTH BANK OF ALABAMA
By: /s/ X. XXXXXXX
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Title: Banking Officer
BANK OF AMERICA ILLINOIS
By: /s/ W. XXXXXX XXXXXXX
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Title: Managing Director
THE BANK OF NEW YORK
By: /s/ XXXX X. XXXXXX, XX.
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Title: Vice President
BANK ONE, COLUMBUS, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
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Title: Vice President
BANQUE PARIBAS
By:
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Title:
By:
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Title:
FIRST AMERICAN NATIONAL BANK
By:
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Title:
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XXXXX XXXXXXXXXX XXXX XX XXXXX
By:
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Title:
FLEET BANK OF MASSACHUSETTS, N.A.
By: /s/ XXXX XXXXXX XXX
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Title: Vice President
THE FUJI BANK, LIMITED, HOUSTON
AGENCY
By: /s/ P.C. XXXXXXXX III
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Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ XXXX X. XXXXXX
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Title: First Vice President
NATIONAL BANK OF CANADA
By: /s/ XXXXX X. XXXXX
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Title: Group Vice President
By: /s/ XXXXXXX X. XXXXXXX
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Title:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ F. XXXXX XXXXXXXX
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Title: Senior Vice President
NBD BANK
By: /s/ XXXXXXXX XXXXXXX
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Title: Vice President
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SOCIETE GENERALE
By: /s/ XXXXXXX X. XXXXX
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Title: Vice President
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
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Title:
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Each of the undersigned hereby consents to the foregoing Waiver and
hereby confirms, reaffirms and restates that its obligations under or in
respect of the Credit Agreement and the documents related thereto to which it
is a party are and shall remain in full force and effect after giving effect to
the foregoing Waiver.
APS HOLDING CORPORATION
By: /s/ E. XXXXXX XXXXXX
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Title: Vice President
BIG A AUTO PARTS, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Vice President
AUTOPARTS FINANCE COMPANY, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Vice President
APS SUPPLY, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Vice President
AMERICAN PARTS SYSTEM, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Vice President
A.P.S. MANAGEMENT SERVICES, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Vice President
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PARTS, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Vice President
PRESATT, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Vice President
INSTALLERS' SERVICE WAREHOUSE, INC.
By: /s/ E. XXXXXX XXXXXX
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Title: Vice President
